MMB v AAM (Appeal E123 of 2024) [2025] KEHC 9587 (KLR) (Family) (4 July 2025) (Judgment)
Neutral citation:
[2025] KEHC 9587 (KLR)
Republic of Kenya
Appeal E123 of 2024
H Namisi, J
July 4, 2025
Between
MMB
Appellant
and
AAM
Respondent
(Being an Appeal from the Judgement of Hon. M.G. Randu, Senior Resident Kadhi delivered on 19 September 2024 in Kadhi Divorce Case No. E105 of 2021)
Judgment
1.This appeal arises from a matter in Kadhi’s Court, filed by the Respondent against the Appellant seeking the following reliefs:i.Official dissolution of the marriage;ii.Issuance of a divorce certificate forthwith;iii.Dissolution of the marriage through Khul’u if (i) above fails on account of the Respondent’s cruelty and neglect;iv.Payment of the outstanding agreed Mahr to the tune of USD1000;v.Maintenance of the Petitioner (Respondent) during eddah at the rate to be determined by the court;vi.Maintenance of the minors herein, as per paragraph 29;vii.Physical/actual custody, care and control of the minors herein be granted to the Petitionerviii.A very reasonable amount of Mataa’ /Compensation for the pain suffered by the Petitioner as a result of the cruelty by the Respondent;ix.Costs of the suit;x.Any other relief the court may deem fit and just to grant
2.The parties herein celebrated their marriage in 2006 in accordance with Islamis law. Their union was blessed with eight children. They cohabited in various places including Eastleigh and Donholm in Nairobi, and Wajir.
3.The Respondent sought a dissolution of their marriage on account of cruelty and unfair treatment. It was the Respondent’s case that the Appellant had refused, failed and/or neglected to provide the basic necessities for the Respondent and their children despite being a man of means. The Respondent pleaded that the Appellant had absconded his marital duties and denied the Respondent her conjugal rights, failed to shower the Respondent with love and affection and threatened to desert the Respondent and their children.
4.The Appellant entered appearance and filed his Response to the Petition, denying the Respondent’s allegations therein. The Appellant pointed the finger at the Respondent, accusing her of being violent to the extent of stabbing the Appellant with a knife. In spite of all this, the Appellant was of the view that the marriage could be salvaged and prayed that the matter be referred to mediation.
5.In its judgement, the trial court identified the following issues for determination:i.Whether divorce should be granted;ii.Whether the Petitioner was entitled to Eddah maintenance;iii.Who is entitled to custody of the minors;iv.Whether the Respondent (Appellant herein) should pay for maintenance of the minors;v.Mat’a (Consolatory gift)
6.The trial court entered judgement in favour of the Petitioner as follows:i.That the marriage celebrated between the parties herein be and is hereby dissolved;ii.That arising from (i) above, Certificate of Divorce be issued forthwith;iii.That actual custody of the minors be granted to the petitioner, the Respondent to get regular reasonable access;iv.That the Respondent shall provide adequate maintenance towards the minors at the rate of Kshs 80,000 by the 5th day of every month for general care, maintenance and upkeep of the children and the Respondent to also pay for their education, medication and clothing separately;v.That the Respondent to pay eddah maintenance of three months at the rate of Kshs 20,000/= per month;vi.That the Respondent to pay the outstanding agreed mahar of USD 1000;vii.That the Respondent shall provide Kshs 100,000 towards mat’a (consolatory gift) to the Petitionerviii.There shall be no orders as to costs.
7.Being aggrieved by the judgement, the Appellant lodged this appeal on the following grounds:i.That the learned Kadhi erred in Law and fact by ordering that the Appellant to provide for the minors a monthly upkeep of Kshs. 80,000 by the 5th day of every month for general care, maintenance and upkeep and to also provide education, medication and clothing separately without regard to the Appellants’ financial situation. The Appellant herein prays that he should be allowed provide Kshs 20,000/= upkeep, education, shelter and medical as need arises;ii.That the learned Kadhi erred in law and fact by ordering the Appellant to a) pay Eddah maintenance of three months at a rate of Kshs. 20,000 per month b) pay the outstanding agreed mahar of 1000USD c) pay Mat’a/send off of KES 100,000 The learned Hon. M. G. Randu failed to consider the Islamic provision that where a woman asks for divorce she should not be granted Eddah maintenance of three months at a rate of Kshs. 20,000 per month, mahar of 1000USD and Mat’a/send off (consolatory gift ) of KES 100,000 as opposed to when divorce is initiated by a man.
8.Based on the foregoing grounds, the Appellant prays for the following orders:a.That the appeal herein be allowed;b.That the judgement dated 19 September 2024 in Nairobi Divorce Cause No. E105 of 2021 be partly set aside;c.That the children matter be transferred from the Kadhi’s Court to the Children Court as the Kadhis Court lacks jurisdiction;d.That in case the Respondent is remarried, custody of the children shifts to the Appellant and access to the Respondente.That the Appellant be awarded costs of the appeal.
9.The appeal was canvassed by way of written submissions and oral highlights.
Analysis and Determination
10.I have keenly reviewed the Record of Appeal and read the submissions by the parties. The Appellant has identified 8 issues for determination by this Court. In my considered view, there are only four issues for determination:i.The jurisdiction of the Kadhis Court to hear and determine issues relating to child custody and maintenance;ii.Whether the Respondent was entitled to Khul’u or judicial divorce;iii.Whether the Respondent was entitled to eddah maintenance;iv.Whether the Respondent is entitled to mat’a.
11.On the issue of the jurisdiction of the Kadhis Courts to hear matters relating to custody and maintenance of children, it was the Appellant’s submission that the jurisdiction of the Kadhis Court emanates from Article 170 (5) of the Constitution which provides;
12.The issue of the jurisdiction of the Kadhis Court to hear and determine matters of children custody and maintenance is one that has been the subject of many decisions of the High Court. In the case of Guyo -vs- Galgalo (Civil Appeal no E122 of 2023) [2025] KEHC 2664 (KLR) Justice Kendagor rendered herself as follows on this question;
13.Similarly, in AYM v HIK (Miscellaneous Case 171 of 2019) [2023] KEHC 27191 (KLR) Justice Nyaundi, S.C had this to say when expounding the above:
14.The learned Judge went further and ruled as follows:
15.The Court of Appeal in TSJ vs SHSR (2019) eKLR, Civil Appeal No 119 of 2017, (Nairobi) D.K Musinga, S.G Kairu, A.K Murgor JJA, held that;
16.Section 2 of the Children Act defines court to mean the Children’s Court designated under section 90 of this Act. Section 90 provides for the designation of children’s court by the Chief Justice. What is notable in the drafting is the use of the word “may” and not “shall”.
17.Further, section 91(2) provides as follows:
18.This provision acknowledges the fact that there may be instances when a court, other than those designated by the Chief Justice under section 90, may be called upon to determine issues relating to children. In such circumstances, such a Court would be bound by the provisions of the Children Act. Without any provision in any written law ousting the jurisdiction of the Kadhis Court to hear such cases, it is clear that the Kadhis can be said to be one of those courts contemplated in Section 91, thus clothing it with the relevant jurisdiction.
19.Regarding the maintenance of the children, the Appellant submitted that under Section 76 (3) (f) of the Children Act, the court is mandated to consider the financial ability of each parent to maintain the child. It is noteworthy that the Appellant did not file any Affidavit of Means in the trial court to assist the Court in ascertaining his financial ability.
20.It is, therefore, my finding that the Kadhis Court had jurisdiction to hear and determine issues relating to children. Further, I find that the trial court did not err in its findings relating to their custody, access and maintenance.
21.The second issue for determination is whether the Respondent was entitled to khul’u. The literal interpretation of Khul’u is divorce at the instance and initiative of the wife, with consent from the husband upon the wife paying an agreed amount as part of the compensation for her release from the bonds of marriage. A wife would be entitled to khul’u if she satisfies the court that denying the same would otherwise force her into a hateful union. Khul’u can be revocable or irrevocable, depending on the circumstances of each case.
22.The Quran 2:229 says thus:
23.The Appellant submitted that the trial court erred in law by not following the Islamic principles that govern divorce in that the Quran allows divorce only if there is no other way to fix the problems in the marriage. The Appellant contended that where one spouse wants a divorce and the other does not, then the Quran dictates that they should try reconciliation first. The adamant party should be reminded of his/her duty towards the family and raising children harmoniously, and Allah’s displeasure at Muslims seeking frivolous divorces.
24.The Appellant submitted that the trial court did not give room for the Appellant to be heard, neither did the Kadhi give room for decree nisi, or time before pronouncing divorce.
25.The Respondent relied on the case of RFO & Anor -vs MJ [2023] KEHC 20573 in which Justice Maureen Odero held thus:
26.In the case of MMO vs. FAH, Garissa High Court Civil Appeal No. 23 of 2018 [2019] eKLR the Court held:
27.In the above case, the Court discussed the four conditions of Khul’u, which are:i.There must be an offer from the wife. The wife may make a proposal either by the use of word “Khul’u” or its derivative e.g. the wife states ‘give me a Khul’u in exchange of my dowry.’ii.The offer must be accepted by the husband. The husband replies “I do”. Thereafter a valid dissolution of marriage under Khul’u comes into effect.iii.The monetary compensation must be paid in return by someone who is legally qualified to donate.iv.The husband must be legally qualified to divorce. (Dr. Salih Al-Fawzan, A summary of Islamic Jurisprudence, V2, page 424).”
28.Reading through the testimonies of the parties in the trial court, it is my considered opinion that the Respondent was able to prove the grounds of divorce. I find that the trial court did not err in not considering the matter of Khul’u as the basis for the divorce.
29.The third issue for determination is that of eddah maintenance. The Appellant submitted that the trial Court erred in law by not following the Islamic principles that govern divorce in that in Khul’a divorce, a wife refunds her dowry or pays some other sum to her husband in order to obtain a divorce.
30.The Quran 2:228 states thus:
31.The Quran (65:6) dictates further
32.Having earlier found that the divorce was a judicial divorce and not Khul’a, it follows that the Respondent is entitled to eddah maintenance.
33.Regarding the issue of mat’a, Justice DK Kemei in the case of SSA vs. HMS, Bungoma High Court Civil Appeal E001 of 2020 [2023] KEHC 24272 (KLR) held thus:
34.I am of similar mind as the learned Judge in the above matter. therefore, i find no error of law in the finding of the trial court.
35.In view of the foregoing, this appeal does not succeed. This being a family matter, I make no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 4 DAY OF JULY 2025HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:For Appellant: Ms. Wachika WachiraFor Respondent: Mr. YusufLibertine Achieng........ Court Assistant